L, R (On the Application Of) v West London Mental Health NHS Trust & Anor [2014] EWCA Civ 47

[2014] EWCA Civ 47Case No C1/2013/0090
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2012] EWHC 3200 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon. Mr Justice Stadlen
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 29 th January 2014
Before
LORD JUSTICE MOSESLORD JUSTICE PATTENLORD JUSTICE BEATSON
Between
The Queen on the application of LRespondentWest London Mental Health NHS TrustAppellant(1) Partnerships in CareInterested Parties(2) Secretary of State for HealthInterested Party(Transcript of the Handed Down Judgment ofInterested PartyWordWave International LimitedInterested PartyA Merrill Communications CompanyInterested Party165 Fleet Street, London EC4A 2DYInterested PartyTel No: 020 7404 1400, Fax No: 020 7831 8838Interested PartyOfficial Shorthand Writers to the Court)Interested Party
Jeremy Hyam (instructed by Capsticks Solicitors LLP) for AppellantDan Squires (instructed by Deighton Pierce Glynn) for RespondentSonia Hayes (instructed by Partnerships in Care) for First Interested Party for The Second Interested Party did not appear and was not represented
JudgmentLord Justice Beatson :
[1]The Appellant, the West London Mental Health NHS Trust (“the Trust”), is responsible for Broadmoor Hospital in Berkshire, one of three high security psychiatric hospitals in England and Wales. The Respondent, L, is now 26 years old. He has an extensive history of serious mental health problems. At the material time, he was detained under section 37 of the Mental Health Act 1983 (“the 1983 Act”) following his convictions for offences of false imprisonment, dangerous driving, theft, and criminal damage in Stockton Hall, a medium security hospital in York. The narrow but important question in this appeal concerns the requirements of the common law principles of procedural fairness in cases where a convicted offender is detained under section 37 as mentally ill and is being considered for transfer from conditions of medium security to conditions of high security.[2]The material facts are summarised in section II of this judgment, at [10] – [20], and the procedural history in section III, at [22] – [25]. The legal and regulatory framework is set out in section IV, at [26] – [57]. On the facts, at this stage it suffices to state that following an incident on 31 July in which, because of a dislike of another patient, L made a makeshift weapon from the arms of spectacles, on 4 August 2010 Stockton Hall referred his case to Broadmoor requesting that he be admitted to Broadmoor. On 2 September 2010, the Admissions Panel at Broadmoor agreed to admit him. L and his solicitor, Ms Jolly, knew that the decision to refer him was made because of the incident and its aftermath. His solicitor, Ms Jolly, was, however, refused permission to attend the Panel hearing as an observer, was not given any of the documents considered by the Panel before the hearing, and was only informed of the date of the hearing on the day before it took place.[3]L instituted judicial review proceedings against the Trust on 30 September 2010, and named Partnerships in Care, which is responsible for Stockton Hall, as an interested party. The challenge was originally (see [24] below) a wide-ranging one. Interim relief restraining the transfer to Broadmoor was granted by the Administrative Court that day, and an order was made for an urgent “rolled up” hearing of the application. On 1 October (for reasons summarised at [23] below) L withdrew his application for interim relief, and the order was discharged by consent. L was transferred to Broadmoor on 6 October 2010.[4]Following the hearing of the judicial review on 18 and 19 April 2012, in an Order dated 13 November 2012 Stadlen J allowed L’s application for judicial review (Order, paragraph 1) and made a declaration (Order, paragraph 2) that the decision-making process by which L was transferred to Broadmoor engaged a common law duty of fairness and that in the respects identified in the judgment the procedural requirements of that duty were not complied with. The defects identified in [559] – [581] of the judgment were that, although L’s representatives had been requesting disclosure of documents and an opportunity to make representations since 19 August, at the time the decision was taken almost two weeks later the Trust had not provided L with any of the documents before the Panel or the “gist” of those documents, or given him an opportunity to make representations to the Panel.[5]In his 859 paragraph judgment, the judge meticulously considered every issue and every authority. I summarise his conclusions about the potential adverse consequences of a transfer from a medium security to a high security hospital at [54] – [57]. He dealt with the common law duty of fairness at [436] – [584] of his judgment. The section until [555] consists of the discussion, and that from [556] the conclusion. He stated (at [557]) that “there is no one size fits all rigid set of procedural requirements which apply in every case” and that “some but not all of the procedural requirements may vary to reflect the presence or absence of countervailing considerations arising from the need to protect people from harm, and the facts of the case”. The judge referred in particular to the absence or presence of a need for decisions to be taken and/or implemented as a matter of urgency in the interests of protecting other people from harm, to the need for fewer procedural requirements where facts are not in dispute, and/or where a person to whom legal advice is available makes it clear that he or she does not wish to avail himself or herself of them.[6]The judge set out twelve requirements of procedural fairness where the managers of a medium security hospital contemplate the referral of a person detained under the 1983 Act to a high security hospital in [558] (which is reproduced in the Appendix to this judgment). These, he stated, apply subject to the need to protect persons from the risk of harm or some other substantial reason for departing from the requirements. He also stated that the reason for departing from the requirements “must be communicated to the patient’s advisers unless there is a substantial reason for not doing so, in which event that reason must be communicated to them”. The Trust appeals against the judge’s decision with his permission. It submitted that the procedures required by the judge would “judicialise” what is essentially a clinical judgment. A fuller summary of these submissions is at [58] – [59] below. On behalf of L, Mr Squires accepted that purely clinical matters were for the doctors but submitted that it was important for there to be an opportunity to correct errors or misleading statements in particular those of a factual nature. He emphasised the need for a person other than L to be able to make representations because his mental condition and medical history showed that he needed assistance. A fuller summary of these submissions is at [60] – [63] below.[7]Before the judge it was also submitted on L‘s behalf that Article 6 of the European Convention on Human Rights (“ECHR”) applied to the transfer and was breached because there was no provision for a fair and public hearing before an independent tribunal to determine whether a patient should be transferred to another hospital. After the hearing in April 2012, the judge considered that the Article 6 arguments that had been advanced raised the possibility of a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998. For this reason, the Secretary of State for Health was added as a party to the proceedings and made submissions on the Article 6 issues. In the event, the judge rejected the submissions on behalf of L based on Article 6. He held (see judgment, [625] – [729] and [839] – [840]) that a decision to transfer a patient was not a determination of civil rights, so no duty under Article 6 arose, but that, if one did, judicial review was sufficient to satisfy its procedural requirements. A cross-appeal by L on this point (for which the judge also gave permission) has not been pursued, although the written submissions of both parties as to the position at common law deployed strands from the judge’s decision on the Article 6 question.[8]For the reasons I give in section VI of this judgment, in particular at [68], and [78] – [80], I have concluded that the judge required a procedure which was inappropriately at the adversarial end of the spectrum of adjudicative methods of decision-making and, in so doing, went beyond what fairness requires in this context. Paragraph 2 of his Order is, in effect, a declaration that the 12 requirements in paragraph [558] of his judgment must, subject to the various qualifications, be complied with and, if my Lords agree, it should be set aside. Where, as in this case the decision in question is largely a clinically-based decision with a rationing aspect, there is a need for circumspection as to what procedure is required.[9]On the particular facts of L’s case, I do not consider that relief should have been given. Accordingly, paragraph 1 of the Order should also be set aside. I have come to this conclusion in the light of what L was able to say at the meetings with the referring doctor and the assessing doctor, his stance at those meetings, which was that he had no objection to the transfer, and the subsequent decision by his solicitor not to make such representations as she was able to make without sight of the reports of those doctors. He was able, either personally or through his solicitor, to put his side of the story about the weapons incident to the authorities before a decision was made about his transfer: see [90] – [95] below. I also note the limited nature of any disagreement as to the facts of the triggering incident and L’s subsequent withdrawal of his challenge to the decision to detain him in conditions of high security. However, for the reasons I give at [95] – [97] the ability of the present process to achieve fairness when considering transfer has an undesirable element of fortuity in it. I consider that in order to remove that fortuity, to give better practical effect to the provisions of the statutory Code of Practice, the Mental Health Act Code of Practice, and to achieve the required procedural fairness, it should (see [99] – [100]) be amended so that, absent urgency, a clinical reason precluding such notification, or some other reason such as the exposure of other patients or staff to the risk of harm, the “gists” of the letter of reference to the high security hospital by the hospital that wishes to transfer the patient and the assessment by the clinician from the high security hospital are provided to the patient and/or his or her representative, and that the patient be afforded an opportunity to make written submissions to the Panel. II. Summary of facts[10]It is only necessary to record one part of L’s extensive mental health history prior to the circumstances which led Stockton Hall on 4 August 2010 to refer him for admission to conditions of high security at Broadmoor. He was admitted to Stockton Hall in December 2009 on a transfer from Ashen Hill, another medium secure unit. In November 2008 Ashen Hill had referred him for admission to Broadmoor. Although Broadmoor’s assessing team recommended that he be offered a place, in a letter dated 11 December 2008, the Broadmoor Admissions Panel informed Ashen Hill that it had unanimously decided not to accept him because his condition did not meet the admission criteria.[11]The triggers for Stockton Hall’s reference on 4 August 2010 were an incident on 31 July 2010, its precursors, and its aftermath. In the days immediately before 31 July L took a dislike to SW, another patient on his ward, and told staff he would assault the other patient. Requests by him and Ms Jolly, then a solicitor with the Howard League for Penal Reform, that either he or SW be moved to another ward were refused. Ms Jolly was told that nothing could be done.[12]At some stage L made two weapons from the arms of his spectacles and a metal sharpened pen. The ward notes for 31 July record that L handed one of the weapons to a member of staff, stated that SW was in danger of being attacked, and that another such weapon was somewhere easily accessible to other patients who were willing to attack SW. He refused at first to tell staff where the second weapon was, although an hour later, after he had been isolated and the ward “locked down” for a search, he told them it was in the garden area of the ward. He later told staff that he intended to stab SW in the neck. The notes for 1 August record that L had been overheard asking other patients whether they were of the opinion that he would be referred to a higher security unit as a result of the incident. Those for 2 August refer to a further period in which L was held in seclusion. The notes for 3 August record that L had given further information about the weapons, and refer to the need to consider referring him to a high security unit.[13]Dr Vandenabeele was, at the material time, a consultant psychiatrist at Stockton Hall and, from April 2010, L’s responsible clinician. After that date he regularly interviewed L on the ward and saw him during weekly ward rounds. He referred L’s case to Broadmoor in a letter dated 4 August. The letter referred to L’s history, including “a long history of engaging in acts of deliberate self-harm”, a history of “displaying hostile and aggressive behaviours whilst in hospital and on numerous occasions [making] threats of physical violence towards staff and [on] other occasions has damaged hospital property”, and of absconding. As to the reasons for the referral, the letter states that the incident began:
“… After a period of several days when [L] had taken a dislike to another patient and subsequently manufactured weapons in order to assault the said patient. The weapons were manufactured from the arms of his glasses and were essentially a plastic handle with a protruding metal sharpened pen of some 1 ½ - 2 inches long. [L] kept one of these instruments in his own possession and hid the second one in the garden area of the ward and at the time also invited several other patients on the unit to use this weapon against the patient he had taken a dislike to, should the opportunity arise. When the weapons were discovered by staff, [L] later disclosed that it had been his intention to stab the other patient in the neck. He considered this an appropriate response after he felt that the other patient had been ‘winding him up’. It is also of relevance that, not long after this incident, when the weapons were moved by members of the nursing team, [L] also made an attempt to punch the above-mentioned patient. Although I recognise that in fact [L] has not physically assaulted the other patient, I consider the risks and the fact that he was making weapons, as well as inciting other weapons, a grave risk.”
[14]Dr Vandenabeele’s evidence is that he discussed the incident regarding the weapons with L but that he did not decide to refer L until he was shown the weapon and realised the full impact of the incident. He considered L needed to be managed in conditions of high security. First, he posed a risk of harm to others. This was seen from his history and his making weapons from his spectacles, one of which he had hidden in the secure courtyard area of the ward. Secondly, by doing this he showed his ability to subvert security. There were others in the ward with a history of violence who might have used the hidden weapon. Dr Vandenabeele stated he “mentioned to” L that he intended to refer him. L did not appear surprised and told him that he wanted to go to Broadmoor. Dr Vandenabeele’s statement also refers to displays of hostility and physically aggressive behaviour to staff by L in the days following the incident.[15]In accordance with Broadmoor’s Operational Policy and Admissions Guidelines, as a result of Dr Vandenabeele’s reference Dr Sengupta, a psychiatrist at Broadmoor, visited Stockton Hall on 17 August to assess of L. Dr Sengupta interviewed him and spoke to those looking after him. His assessment reviewed the reasons for Stockton Hall’s referral, the background information about L, information about the index offences which led to the detention under section 37, and the various clinical assessments since L’s teenage years. Dr Sengupta stated that at his interview with L, L said he was “keen about Broadmoor, already knew a number of patients and was looking forward to coming to Broadmoor”, was “keen to highlight his risk of interpersonal violence”, and “described the incident of violence both in the ward and in the community, as a matter of fact without little apparent emotion…”. Dr Sengupta’s conclusion was that L posed “a grave and immediate risk to others”. He recommended that L be admitted to Broadmoor under conditions of maximum security.[16]The fact that L asked others on the ward soon after the incident whether it would lead to him being referred to a high security unit shows he was aware that the transfer was a possibility. He knew of Stockton Hall’s intention to refer his case to Broadmoor when Dr Vandenabeele told him shortly after the incident that he intended to refer him. He knew the reference had been made by 17 August when Dr Sengupta assessed him. He may have known this earlier. He informed Ms Jolly of the assessment on 19 August. She wrote to Broadmoor that day asking for “disclosure of the documents relating to the transfer as a matter of urgency”, the date of the meeting of the Broadmoor Admission Panel, and for permission to attend the meeting.[17]Dr Murray, the clinical director at Broadmoor, spoke to Ms Jolly on the telephone on 20 August. He told her that she would not be able to attend the Panel. There was a delay in responding to her request for the date of the Panel and the relevant documentation because Broadmoor was awaiting a reply from Stockton Hall. Ms Jolly received a letter from Broadmoor only on 1 September 2010, the day before the Admissions Panel met. This letter stated that in order to be sent the documents it was necessary for Ms Jolly to provide a signed authorisation and to agree to pay for copying charges.[18]When the Panel met on 2 September 2010 it had before it Dr Vandenabelee’s referral letter and the reports by Dr Sengupta and the social worker. It also had some 15 earlier reports about L by psychiatrists, psychologists and other healthcare professionals, the witness statements concerning the index offence, and the decision about L dated 23 July 2009 by the Mental Health Review Tribunal. At that time none of those documents had been provided to L or his legal representatives, although he and any legal representatives would have had the 2009 Tribunal decision and such of the documents as had been before the Tribunal. The social worker’s report, dated 31 August 2010 and based on a pre-admission assessment, recommended that L be admitted to Broadmoor for “a period of assessment”. It appears from the material before the judge including (see judgment [496]) a letter dated 16 September from Dr Murray to Ms Jolly that the view of the clinicians at Stockton Hall was that L be transferred to Broadmoor in no more than a week because a “situation whereby he anticipated that he was to be transferred … shortly and had nothing to lose was inherently clinically high risk”. In a letter to the hospital also dated 16 September, before she received any documents, Ms Jolly stated L did not wish to be transferred to high security conditions and expressed concern that the Panel may not have had up to date and accurate information or the relevant thoughts and observations of L.[19]On 20 September, almost three weeks after the hearing at which the Panel made the decision, and four weeks after Ms Jolly’s request, she received Dr Sengupta’s report and the letter from the Admissions Panel informing Dr Vandenabeele of the decision. On 24 September Dr Murray agreed to disclose all the documents before the Panel except the witness statements concerning the index offence. Ms Jolly received the documents on 27 September. She considered that the reports about the incident contained factual errors or gave a misleading impression of its circumstances and did not refer to L’s repeated attempts before the incident to be separated from SW. The reports of Dr Vandenabeele and the social worker described the incident in the same terms. They stated that the weapons had been “discovered by staff”. Dr Sengupta’s report did not use the term “discovered” but, like the referral letter and social worker’s report, did not mention that L had handed in one of the weapons and had told staff where the other one was. Mr Squires described Dr Sengupta’s report as incomplete and the other documents as misleading.[20]Ms Jolly’s concern about the accuracy of the reports, together with the absence of an opportunity to make representations before the decision to transfer L was made, led to her sending a letter before claim to the Trust two days later on 22 September. It would later be asserted (judgment [81]) that L’s fabrication of the weapons and disclosure of the weapon to staff appeared to be more of a cry for help than a threat to SW. The letter before claim also contained representations, and a request that the decision be reconsidered and the rest of the relevant documents disclosed so that further representations could be made. The remainder of the evidence before the Admissions Panel was received by Ms Jolly on 27 September. On 30 September 2010, the Trust refused to withdraw the transfer decision or reconsider it in the light of the representations.[21]The judge was to find (judgment [215]) that, “even on the assumption that the … Panel proceeded on an incomplete and possibly inaccurate understanding of the facts of the incident which triggered the referral, the evidence … suggest[ed] that it [was] likely that it would have reached the same decision if it had had a complete and accurate understanding of the facts” (emphasis added). But he also concluded (judgment, [226]) that the matters relied on by the Trust did not go “so far as to lead inevitably to the conclusion that, assuming that [L’s] version of events is correct, if the Admissions Panel had an accurate and complete version of events and had found the facts to be as they are contended for by [L], it would necessarily have reached the same assessment as to risk” (emphasis added). III. These proceedings[22]The evidence on behalf of L before the judge consisted of three witness statements of Ms Jolly (dated 30 September 2010, 19 April 2012, and 20 April 2012), two statements of L (dated 30 September 2010 and 9 February 2012), two statements of Dr Davies, a consultant forensic psychiatrist (dated 6 December 2010 and 26 April 2012), and one of Mavis Campbell, a solicitor at Scott-Moncrieff and Associates LLP (dated 30 April 2012). The evidence on behalf of the Trust consisted of the statement of Dr Clare Dillon, a consultant forensic psychiatrist at Broadmoor Hospital who has been L’s responsible clinician since 25 August 2011 (dated 23 February 2012), and two statements of Dr Murray (dated 24 February 2012 and 18 April 2012). The evidence on behalf of the first interested party, Partnerships in Care, is the statement of Dr Vandenabeele (dated 26 October 2010).[23]I have referred to the institution of these proceedings and the withdrawal of the application for interim relief. In relation that withdrawal, Ms Jolly’s evidence (second statement, paragraphs 5 and 6) is that L found it difficult being in Stockton Hall at the same time as he was bringing legal proceedings challenging a process initiated by his clinical team there. He contacted his solicitors in a state of extreme agitation saying that he could not cope with being in Stockton Hall any more because he was getting clear signals from his clinical team that they did not want him there. Ms Jolly stated that L did not want to go to Broadmoor but wanted to do anything to get out of Stockton Hall and felt that Broadmoor was his only option. His solicitors therefore withdrew the application for interim relief and the injunction restraining his transfer was discharged.[24]While the application for interim relief was withdrawn, the proceedings were not, and permission to proceed was given by Kenneth Parker J. The decision to transfer L to Broadmoor was challenged on a number of grounds other than the procedural unfairness and ECHR Article 6 grounds which came before the judge. The other grounds included contentions that L should not be detained in conditions of high security and that the transfer was in breach of the substantive provisions of ECHR Article 8. Those grounds were abandoned before the hearing. Moreover, an application by L to the Tribunal to discharge him or recommend that he be transferred back to a medium security hospital was withdrawn during October 2010. It thus appeared that, before the hearing, it was accepted by L and his legal team that he was properly detained in conditions of high security.[25]The judge considered whether the result of the developments since permission had been given was that there was no longer a live issue before the court. After careful consideration, and with some reservation, he concluded (at [236]) that, since permission had been given because Kenneth Parker J considered the question of the fairness of the procedures for transfer was of general importance and merited review, he should adjudicate on it. The result, as the judge recognised, was that he was adjudicating on the general position of transfer rather than a live issue between L and the Trust. It may be in part because the judge was adjudicating on the general position rather than dealing with a live issue that so much ground was covered and that his formulation at [558] of what a fair procedure required was an elaborate, detailed and rather prescriptive list of twelve requirements. His formulation has an almost legislative flavour, with elaborate provisions for the position in cases of urgency, confidentiality, the circumstances in which the full report rather than its “gist” should be produced, the need to inform the patient and his or her advisers that an oral hearing may be possible although it is not automatic, and the factors that suggest when an oral hearing should be “the norm”. Absent a focused factual matrix and dispute, there is a real risk of abandoning the adjudicative exercise which is the principal and in many cases the sole function of litigation, and conducting into what is, in substance, an inappropriate quasi-legislative exercise. IV. The legal and regulatory framework[26](i) The context: Before summarising the legislative and regulatory provisions, and in order to put them and the submissions as to what procedural fairness requires in a case such as this in context, I note some basic information. Dr Murray’s evidence is that there are approximately 750 beds in Ashworth, Broadmoor and Rampton, the three high security hospitals in England and Wales, that the annual turnover of admissions and discharges is in the region of 150, and that in the two year period ending 31 December 2011, the average length of stay in a high security hospital was 5.9 years. There are some 3,500 beds in medium security hospitals, and the equivalent annual turnover is about 2,500. Dr Murray states that in the two year period 117 of the 171 transfers to high security hospitals were from prisons, and 26 from medium security hospitals. 25 were from other high security hospitals and 3 are described as ‘other’. These figures are consistent with Dr Vandenabeele’s evidence that transfers from medium security to high security hospitals are relatively rare. As to Broadmoor’s position, Dr Murray’s evidence is that it receives approximately 100 referrals for transfer annually, and accepts about 50 on first application. Of those refused, in cases where the medium security hospital considers it cannot safely admit from prison or continue to look after the particular patient, about half a dozen cases a year are considered by the Appeals Panel described at [52] below. About half of the cases so considered are accepted as a result of the appeal process.[27](ii) The legislative framework: In order to be detained in a hospital for treatment under the 1983 Act, the three conditions in section 3 of the 1983 Act must be satisfied. First, the person must be suffering from a mental disorder of a nature or degree which makes it appropriate for him or her to receive medical treatment in a hospital. Secondly, it must be necessary for the health or safety of that person or the protection of other persons that he or she should receive such treatment, and it cannot be provided unless he or she is detained. Thirdly, appropriate medical treatment must be available.[28]Those convicted before the Crown Court who satisfy the conditions in section 3 may be detained pursuant to a hospital order made pursuant to section 37 of the 1983 Act. Patients subject to a hospital order made by a court who are also subject to a restriction order under section 41 of the 1983 Act are subject to an additional layer of decision-making. In their cases the consent of the Secretary of State is needed for discharges and transfers. It is not necessary for the purpose of this appeal to consider their position further. Once a person is admitted to hospital pursuant to a hospital order without restriction, his or her position is almost the same as if he or she were a civil patient. It was stated by the Criminal Division of this court in Birch (1989) 11 Cr App R (S) 202 at 210 that “in effect, he passes out of the penal system and into the hospital regime”.[29]The consequence of a person detained pursuant to a hospital order passing out of the penal system in this way is (see section 20 of the 1983 Act) that authority to detain that person must be renewed every 12 months. The patient must be examined by the responsible clinician, a report made to the hospital managers, and, if the managers do not discharge the patient he or she must be informed. The hospital managers may also (see section 23) make an order that he or she be discharged. For this purpose (see section 23(4)) three or more members of the relevant hospital Trust must exercise the power to make an order for discharge. A patient may apply to the hospital managers for a review of his case and for discharge as often as he likes. There is no procedure specified for such reviews by the managers but there is guidance in the statutory Code (as to which see [36] – [38] below). In short both the Code and common law fairness require the patient to be afforded an opportunity to state his or her case, and the hospital managers must give reasons for their decision.[30]At the material time, provision for transfers was made by sections 19 and 123 of the 1983 Act and in the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 SI No. 1184/2008 (“the 2008 Regulations”). It follows from what I have said about the effect of a hospital order that these provisions apply to patients such as L whose detention followed the commission of a criminal offence and a decision of the court as well as those who are detained pursuant to section 3 of the 1983 Act. Section 19 applies to transfers to and from all hospitals, including those from medium security hospitals to high security hospitals. Broadly speaking, section 19 provides for transfers where the managers of the relevant high security hospital have agreed with the managers of the referring hospital pursuant to the provisions in the 2008 Regulations. Regulation 7(2) makes provision for a transfer to another hospital where the hospital in which the patient is gives authority for the transfer and is satisfied that arrangements have been made for the admission of the patient to the receiving hospital. Regulation 26 provides that where a patient is to be, or has been, transferred pursuant to section 19, the managers of the hospital to which the patient is to be or has been transferred shall take such steps as are reasonably practicable to cause the person appearing to them to be the patient’s nearest relative to be informed before the transfer takes place or as soon as practicable thereafter.[31]Section 123 of the 1983 Act gave the Secretary of State power to direct that a person detained in a high security psychiatric hospital be transferred to another high security hospital or any other hospital. It was repealed by section 42 of the Health and Social Care Act 2012, with effect from 1 July 2012, but (see 42(5)) without affecting the position of those detained before the commencement of section 42.[32](iii) Appeals to the Tribunal: Where a report authorising the renewal of authority for the detention of a patient is made under section 20 of the 1983 Act, it is necessary to inform the patient. By section 66 of the 1983 Act, a patient in respect of whom such a report is furnished may apply to the Tribunal. Under the structure established under the Tribunals, Courts and Enforcement Act 2007 this is now the First-tier Tribunal (Mental Health) in the Health, Education and Social Care Chamber. An appeal lies from the First-tier Tribunal to the Upper Tribunal on a point of law. The right to apply to the Tribunal is subject to the limitation that an application in the case of a person such as L can only be made six months after his initial detention, thereafter not for a further six months, and thereafter only once every twelve months.[33]By section 72 of the 1983 Act, the Tribunal is empowered to direct that the patient be discharged if it is not satisfied that he is then suffering from mental disorder, a disorder of the nature which makes it appropriate for him to be detained in hospital, or that detention is necessary for the health and safety of the patient or other persons. These requirements are the obverse of the three criteria for detention in section 3 of the 1983 Act. By section 72(3), a Tribunal which does not direct the discharge of a patient under sub-section (1) may recommend inter alia that he or she be transferred to another hospital.[34]In England, and in Wales (where the functions under the 1983 Act are now exercised by the Welsh Ministers), a person who is transferred from a medium security hospital to a high security hospital against his will has no right of appeal against the decision of the transferring hospital to authorise his transfer or the decision of the receiving hospital to agree to his admission (see judgment, [172]). The position differs in Scotland, where there are a total of about 150 beds in medium security hospitals and about 140 beds in the single high security hospital serving Scotland and Northern Ireland. Section 126 of the Mental Health (Care and Treatment) (Scotland) Act 2003 confers a right of appeal in the case of a patient who receives notice that it is proposed to transfer him or her. In 2004 a draft bill including a proposal to introduce a similar right of appeal in England and Wales was subjected to pre-legislative scrutiny by Parliament but, as a result of criticisms, the government did not proceed. When the bill which became the Mental Health Act 2007 was introduced in 2006, it contained no such provision.[35]In England and Wales, the only statutory remedy in respect of a decision to transfer a patient pursuant to section 19 of the 1983 Act is therefore the right pursuant to section 66(1) of the 1983 Act to make an application to the Tribunal, after a report under section 20 which does not discharge the patient. In those circumstances the issue before the Tribunal is not whether it was correct to transfer the patient in the first place but whether, as a matter of discretion, he or she should be re-transferred to a medium security hospital with a view to facilitating his discharge on a future date. The judge (see [186]) emphasised that this meant that the issue before the Tribunal was not whether the individual satisfied the criteria of the receiving hospital’s Admissions Panel, whether the Panel erred in some other way, or whether the referring hospital erred in its decision to authorise the transfer.[36](iv) Mental Health Act Code of Practice: Section 118 of the 1983 Act requires the Secretary of State to prepare a code of practice for the guidance of clinicians, hospitals and care homes. After the amendments to that Act made by the Mental Health Act 2007, the Department of Health conducted a wide consultation exercise with those who provide and receive services under the Act and interest groups and, in 2008, revised the statutory Code of Practice. The Code was revised again in 2013, but the references below are to the 2008 version as that was the one applicable at the time of L’s transfer.[37]Chapter 1 of the Code contains a statement of guiding principles including “the least restriction principle”, requiring an attempt to keep to a minimum the restrictions imposed on a patient’s liberty, “the respect principle”, which includes considering the patient’s views, wishes and feelings, and “the participation principle”, requiring patients to be given the opportunity to be involved as far as is practicable in the circumstances, in planning, developing and reviewing their own treatment and care: paragraphs 1.3 – 1.5.[38]Chapter 2 deals with information for patients. It provides (paragraph 2.17) that patients have a right to ask the hospital managers to discharge them and that patients have a right to apply to the Tribunal. Paragraph 2.18 provides that hospital managers should ensure that patients are offered assistance to request a hospital managers’ hearing or make an application to the Tribunal, told how to contact a suitably qualified legal representative, and given assistance to do so if this is required.[39]Chapter 30 gives general guidance on the responsibilities of hospital managers and on powers and duties including those in relation to transfers. Paragraph 30.3 states that hospital managers, who have the authority to detain patients under the 1983 Act, “must ensure that patients are detained only as the Act allows…and that they are fully informed of, and are supported in exercising, their statutory rights”. Chapter 31 gives guidance on the exercise of the power of hospital managers to discharge detained patients.[40]Transfer between hospitals is dealt with in paragraphs 30.13 – 30.23 of the Code. There is no formal requirement laid down for the procedure to be followed in the decision-making process or as to the role of the putative receiving hospital. The Code does not specifically address the particular question of a move to or from high security conditions, or refer to any particular issues arising from the stricter regimes in high security conditions. This part of chapter 30, at paragraph 30.15, states inter alia that those authorising transfers “should ensure that there are good reasons for the transfer and that the needs and interests of the patient have been considered”, and it is stated that transfers are “potentially an interference” with a patient’s right to respect for privacy and family life under ECHR Article 8.[41]As to the position of the patient when transfer is being considered, paragraph 30.17 states:
“wherever practicable, patients should be involved in the process leading to any decision to transfer them to another hospital. It is important to explain the reasons for a proposed transfer to the patient and, where appropriate, their nearest relative and other family or friends, and to record them. Only in exceptional circumstances should patients be transferred to another hospital without warning.”
Paragraph 30.21 states that requests made by, or on behalf of, patients should be recorded and given careful consideration, and that every effort should be made to meet the patient’s wishes. Notwithstanding the Code’s requirement that patients should be in the process, Stockton Hall’s position (see skeleton argument before the judge, paragraphs 48 and 61) was that a patient has no right to be consulted before a decision to transfer is made, and that to permit formal representations would “compromise the safe and therapeutic environment of secure hospitals”. Mr Squires submitted that there is nothing in these paragraphs of the Code to suggest that it would not be appropriate, where fairness requires it, to “involve” a patient in the process and “explain the reasons for a proposed transfer to the patient” by giving the patient, or a person acting on behalf of the patient, an opportunity to make representations.[42]The Code also contains provisions about the reasons that would justify transfer. There are both clinical reasons and non-clinical ones, such as moving the patient closer to home. Paragraph 30.18 lists four of the factors that need to be considered when deciding whether to transfer a patient. These include the effect of a transfer on the course of the patient’s disorder or recovery, and the availability of appropriate beds at the potential receiving hospital. This reflects the fact that it is the transferring hospital which has to authorise the transfer although, as will be seen in the discussion of Broadmoor’s Operational Policy and Admissions Guidelines, the effective decision is made by the putative receiving hospital.[43]The guidance in Chapter 31 of the Code on the power of hospital managers to discharge patients states inter alia (31.11) that hospital managers should consider holding a review when they receive a request from or on behalf of a patient, must undertake a review if the patient’s responsible clinician makes a report under section 20 of the 1983 Act renewing detention, and may, in their discretion, undertake a review of whether or not a patient should be discharged at any time. As to the criteria to be applied, paragraph 31.16 reflects the statutory criteria in sections 3 and 72 of the 1983 Act to which I have referred.[44]The Code deals with the procedure for reviewing detention and the conduct of reviews in paragraphs 31.23 – 31.38. It is stated (31.23) that, while the 1983 Act does not define the procedure for reviewing detention, the exercise of this power “is subject to the general law and to public law duties which arise from it”. It is stated that, to satisfy “fundamental legal requirements of fairness, reasonableness and lawfulness”, managers’ panels should “adopt and apply a procedure which is fair and reasonable”, not make irrational decisions, and not act unlawfully.[45]As to the conduct of reviews where detention is contested, paragraph 31.24 provides that reviews should be conducted in such a way as to ensure that the case for continuing detention is properly considered against the questions in the 1983 Act and the Code, and in the light of all the relevant evidence. Paragraph 31.25 provides that managers’ panels should be provided with written reports from the patient’s responsible clinician and other key individuals directly involved in the patient’s care in advance of the hearing. Paragraph 31.26 provides that the patient should be provided with copies of the reports as soon as they are available unless, in the light of any recommendation made by their authors, panels are of the opinion that disclosing the information would be likely to cause serious harm to the physical or mental health of the patient or any other individual. Significantly, this paragraph also states that “the patient’s legal or other representative should also receive copies of these reports”. Finally, paragraph 31.28 provides that, unless the patient objects, the nearest relative should normally be informed when managers’ panels are to consider a patient’s case.[46]The judge stated that the guidance in the Code on transfers of patients between hospitals differs markedly from that about the power of hospital managers to discharge a patient. The differences he identified between the guidance in Chapters 30 and 31 are (see judgment, [148] – [153]) that decisions on transfers may be delegated by the transferring hospital (here Stockton Hall) to a single officer, and that in the case of transfers, unlike discharges, the Code does not identify an essential yardstick which hospital managers must use when considering whether to authorise a transfer.[47](v) Broadmoor’s Hospital Operational Policy and Admissions Guidelines: As the judge stated (at [126] – [127]), the referring hospital has to authorise the transfer and there is no express power conferred on the managers of the hospital to which it has proposed that the patient be transferred either to authorise or to refuse a transfer. But, as the judge also recognised, in order to have an accurate picture of the position it is necessary to consider the regulatory framework contained in the hospital’s Admissions Panel Operational Policy and Admission Guidelines.[48]Taking account of Broadmoor’s Policy and the Guidelines, the judge stated (at [129] and [311]) that the effective decision as to whether a patient should be transferred lay not with the referring hospital but with the putative receiving hospital. The process which is described in the parts of his judgment starting at [155] on the Operational Policy, the Guidelines and the provisions for appeals by either Broadmoor or the referring hospital against adverse decisions shows the process envisages managed agreement with provision for dispute resolution in the absence of agreement.[49](vi) The Admissions Panel: In the case of Broadmoor, referrals are considered by its Hospital Admissions Panel. The Panel works within a framework consisting of the Operational Policy and the Admission Guidelines and Standards appended to it. The Department of Health’s intention is that Broadmoor, Ashworth and Rampton should work to the same admission standards: see paragraph 4 of the second statement of Dr Murray. He states that the hospitals are expected to “gatekeep” what is a scarce and expensive national resource, and to do so by the exercise of clinical and professional expertise. The version of Broadmoor’s Admissions Panel’s Operational Policy in force at the material time is an eight page document with two appendices. There are sections on the referral procedure, the preparation of the report of the Broadmoor assessing team, membership of panels, Admissions Panel procedure, communication of panel decisions, and appeals. It is a detailed document.[50]The members of the Panel are (see section 5) a consultant psychiatrist or a lead clinician, nurses and representatives of the relevant social work and occupational therapy specialisms. The Panel does not (see 5.1) include anyone who has treated the individual under consideration. A Broadmoor assessing doctor is (see 2.6) to liaise with the referring consultant and visit the referring hospital to speak to staff who know the patient well. The assessing doctor and team make (see 3.1) a recommendation to the Panel, which (see 6.9) may accept or reject it. The Panel may inter alia ask the recommending Broadmoor assessing doctor to attend the Panel to provide additional information or to seek further assessment from another clinical discipline within Broadmoor.[51]The evidence of Dr Murray is that Panel decisions are taken on the basis of clinical material supplied by the referring agency, typically either a prison, a solicitor representing a person on remand, or a medium security unit. Broadmoor’s Operational Policy states (at 6.5) that the assessing doctor is permitted to attend the deliberations of the Panel but Dr Murray’s evidence is that the assessing doctor and the other clinicians who prepare a report for the Panel do not attend its deliberations. Neither does the patient’s solicitor or family. Dr Murray stated that the decisions of those assessing the case and the Panel “are clinical decisions taken by an experienced group of clinical staff who have long experience in assessing referrals”. There is provision (6.10) for persons to request to attend the Panel as observers. They “will not be expected to contribute to the discussion” but “may raise questions once a decision has been reached”.[52](vii) Appeals from Panel decisions: Broadmoor’s Operational Policy provides (see section 8) for an appeal to an Admissions Appeal Panel when either the referring agency or the Broadmoor assessing consultant is not satisfied with the final decision of the Panel or in specified exceptional circumstances which are not relevant. The Appeals Panel reviews the papers that were before the first Panel and any additional documentation provided by the dissatisfied agency which has challenged the original decision.[53]Accordingly, as the judge stated at [171], “neither at the Admissions Panel stage nor at the Appeals Panel stage does the procedure…make any provision, in the case of a proposed transfer of a patient from a medium-secure hospital, for any involvement on the part of the patient or his solicitors, whether by making representations, receiving the material put before the panels, attending hearings or otherwise”.[54](viii) The consequences of a transfer from a medium security to a high security hospital: The judge considered (judgment, [237] – [291]) two potential adverse consequences. The first was the potential for delaying the ultimate date of discharge from detention under the 1983 Act. The second was the potential for more restrictive detention conditions.[55]The judge concluded (judgment, [265] – [266]) that the decision to transfer had “the potential to have a significant adverse effect on the time that will elapse before the patient is ultimately discharged from detention” because, although in principle a person who the Tribunal is not satisfied is suffering from a mental disorder of a nature which makes it appropriate to be detained in a hospital is required to direct discharge, in reality discharge directly from a high security hospital is extremely rare. Mr Hyam contended that the judge was wrong to conclude that the decision to transfer L directly or inevitably affected the date of his release because it is not the decision to transfer that delays release, but the nature of the patient’s condition. As part of his rejection of the analogy drawn by the judge between the cases involving categorisation and transfers of prisoners and transfers of patients, he disagreed with the statement of Lightman J in R v Secretary of State for the Home Department, ex p. Harry [1998] 1 WLR 1737 at 1742 that a transfer to a hospital with conditions of different security has “as great impact upon a patient’s eventual prospects of discharge as a prisoner’s categorisation as category A or B”.[56]On the first adverse consequence, while there is some force in Mr Hyam’s submissions, I do not consider that the judge erred. As Baroness Hale has stated in Mental Health Law (5th ed., 2010) 213, once in a high security hospital “it can be difficult to obtain a transfer back into an ordinary hospital” and that “[t]ransfer to a less secure environment is usually an important step towards obtaining discharge …”. That is the tenor of the evidence by Dr Murray and Dr Davies in this case.[57]As to the second potential adverse consequence, the judge concluded (at [290] – [291]) that transfer to a high security hospital “results in an inevitable increase in the restrictions to which a person is or may be exposed”. This was because it may be lawful in a high security hospital to interfere with a patient’s unrestricted access to and use of postal and telephone communication and some interference (the opening of postal packets) is mandatory. There is also greater provision for searches and greater monitoring and control of visits. The judge, however, accepted that restrictions on the right to make unmonitored telephone calls and on the right to send and receive post do not arise on transfer but only (in the case of telephone calls) when a decision is made under Direction 34 of the applicable Directions At the time of the transfer these were the Safety and Security in Ashworth, Broadmoor and Rampton Hospitals Directions 2000. They were replaced in 2011 by High Security Psychiatric Services (Arrangements for Safety and Security at Ashworth, Broadmoor and RamptonHospitals) Directions 2011. and (at [675] – [679] and [699]) in the case of post when a decision pursuant to section 134 of the 1983 Act is taken to withhold particular incoming item from the patient or not to post a particular outgoing item. V. The submissions of the parties[58]The submissions before this court are essentially those made before the judge. L’s case is that the approach that has been taken in decisions concerning categorisation of prisoners and transfers within the prison system is relevant and means that the common law duty of procedural fairness applies to the decision to transfer him to Broadmoor because of the additional security restrictions and the likelihood of delaying his release. Mr Squires submitted that the Trust failed to comply with the requirements of procedural fairness because it gave L or those representing him no real opportunity to challenge the decision to transfer. Before the decision of the Panel, it failed to disclose the “gist” of the material before the Panel that was said to justify the transfer which was needed to enable representations on L’s behalf to be made. On the facts of this case considerations of urgency or confidentiality did not preclude this. Mr Squires did not press the submission that an oral hearing was required but emphasised the need for a person other than L to be able to make representations because L’s mental condition and medical history showed that he needed assistance.[59]Mr Squires accepted that purely clinical matters were for the doctors but argued that it was important for there to be an opportunity to correct errors or misleading statements of a factual nature. This would both help the achievement of better decisions and accord due respect to the person whose position will be significantly affected by the decision. He submitted that fairness requires that, in respect of decisions of this kind, the individual see at least the “gist” of the material that will be before the decision-maker and have the opportunity to make representations on that material before the decision is made. Mr Squires denied that what he maintained was required would lead to the “judicialisation” of what he accepted was a clinical decision, but contended that fairness required an opportunity to make worthwhile representations in particular on the factual underpinnings for that decision but also more generally on the contents of the referral and the assessing doctor’s report.[60]The Trust’s case is that the decision to transfer was not procedurally unfair. Mr Hyam resiled from the implications of paragraph 1(i) of his skeleton argument, in which it is stated that this appeal raised the question of whether the judge was right to hold that a duty of common-law fairness was engaged by the Broadmoor Admission Panel’s decision to accept L for transfer from conditions of medium security. His reformulated submission at the hearing accepted that the transfer decision is subject to a duty of common-law fairness, but he maintained that, in the light of the various alternative avenues by which L’s apparent dissatisfaction with the decision to transfer him could be ventilated, the process followed and the decision taken by the Trust was fair. His starting point was that, in determining what procedural fairness required in this case, the court should use the framework suggested by Lord Bridge in Lloyd v McMahon [1987] AC 625 at 702, as to which see [74] below.[61]The lynchpin in the submissions on behalf of the Trust is that the decision of the Panel was a clinical risk-based evaluative judgment undertaken by expert clinicians from a range of disciplines. What was before the Panel was an application made by the patient’s responsible clinician at the hospital which wished to transfer the patient, in respect of which the framework under the 1983 Act, the 2008 Regulations and the Code gave the patient no right of access to the Panel. Mr Hyam argued that the procedures required by the judge would “judicialise” this essentially clinical judgment. It would turn what was “a consensus decision taken in private by the Panel of clinicians with no oral evidence or submission to the Panel from the Responsible Clinician [in this case Dr Vandenabeele] whose application it was”, into “a quasi-Tribunal expected both to find facts and exercise professional judgment on the basis of oral submissions and argument from the patient and/or his legal representatives, (and it is assumed the applicant responsible clinician who may disagree with the patient)”. He relied on Dr Murray’s evidence that the system in these hospitals would not be able to cope with the burden of such procedures.[62]Mr Hyam submitted that the judge underemphasised the significance of the right of patients to apply to the hospital managers of Stockton Hall to challenge Dr Vandenbeele’s decision to refer him for transfer, and his right once transferred to seek reviews of his detention, which would, if detention was maintained, give rise to a right of appeal to the Tribunal. He also submitted that the judge gave insufficient recognition to the fact that L’s views on the transfer had in fact been sought and taken into account through Dr Sengupta’s assessment, and that, although L was aware that his transfer was under consideration, neither he nor his solicitor made any representations to the effect that he did not wish to be transferred to Broadmoor prior to the decision of the Admissions Panel.[63]Before the judge, it was also submitted on behalf of the Trust that there was no credible dispute about the existence of the risks posed by L in the factual circumstances which formed the basis of the request for admission, and that this was a matter of professional judgment and not an issue which would require an oral hearing to resolve. There was no dispute that L had manufactured a weapon and stated that he intended to use it to stab a fellow patient. The point Ms Jolly raised and disputed concerned whether what he had done was truly indicative of risk or whether, in the light of L’s known history of exaggeration and manipulation, it was not so indicative. What was involved in the Panel’s decision was a clinical evaluation of the risk presented by L. There was no medical evidence to support the assertion that L’s risk was less, and no real dispute that criteria for admission to Broadmoor were satisfied. VI. Analysis[64]After Mr Hyam accepted during the hearing that transfers of patients from medium security to high security hospitals are subject to the requirements of common-law procedural fairness, the issue between the parties became what is in fact required in this context. L knew that he was being considered for transfer and knew what the immediate trigger was, and had the opportunity to give his views to Dr Vandenabeele, the referring clinician, and Dr Sengupta, the assessing clinician, when they met him. Does fairness also require that he or his representative be given the opportunity to comment on at least the “gists” of their reports before the Panel made its decision? Before turning to this question, I observe that Mr Hyam’s submission that it does not and Mr Squires’ submission that it does are both vulnerable to different versions of a “slippery slope” argument.[65]Mr Squires’s vulnerability is illustrated by what the judge required in the twelve sub-paragraphs of [588] of the judgment set out in the Appendix. He was asked to explain how, if the practical impact of transfer on the rights and position of a patient who is to be transferred to high security conditions is given a central role in ascertaining what procedural protection should be required, that will not, in particular circumstances, mean that, notwithstanding the recognition of the need to avoid “judicialisation” and to accommodate cases which are urgent or confidential, that would be the result in practice. In the course of the hearing, Mr Squires stated that all that was sought was disclosure of the “gist” of the reports. He was, however, unable to offer a reason as to why, if his submissions on the general principles were correct, they could not and would not lead in some cases to requiring not merely the “gists” but all the documents and an oral hearing. For instance, in the present case Mr Squires described the issue as L’s intent and credibility. In many contexts it is just such issues which are said to call for live evidence or submissions.[66]The “slippery slope” argument to which Mr Hyam’s position is vulnerable is that it seems to define fairness solely by reference to the statutory Code and the Admissions Policy. He submitted that a procedure in accordance with the statutory Code and Broadmoor’s Admissions Policy will not be unfair. But the Code is in very general terms and does not consider the position of transfers to high security hospitals, and the Admissions Policy is primarily concerned with the way the high security hospital entertains a reference by a medium security hospital or a prison, and not with input by the patient. Mr Hyam was unable to explain why the Code’s requirement (see [41] above) that patients “be involved in the process leading to any decision to transfer them” does not require a worthwhile opportunity to make representations. He also offered no adequate explanation as to why, if the Code does not itself require such an opportunity, in this particular context, unlike many others, there is no scope for, in the words of Lord Bridge in Lloyd v McMahon [1987] AC 625 at 702, supplementing the regulatory regime “by way of additional procedural safeguards as will ensure the attainment of fairness” or, adapting Baroness Hale’s words in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 at [201] imposing procedural requirements upon apparently open-ended provisions.[67]My starting point in ascertaining what fairness requires in a case such as this is to consider the commonplace orthodoxy in the modern law that what procedure is required by the common-law principles of natural justice or fairness is acutely sensitive to context. So, Wade and Forsyth’s Administrative Law 10th ed., (2009), 373, states that the precise content of the rules of natural justice depends on the particular circumstances but their general applicability is beyond doubt. The post-Ridge v Baldwin cases (from Re HK (an Infant) [1967] 2 QB 617 at 629 – 630, through R v Gaming Board for Great Britain, ex p. BenaimandKhaida [1970] 2 QB 417 at 430, Re Pergamon Press [1971] Ch 388 at 399 – 400, 403E and 407E, and McInnes v Onslow-Fane [1978] 1 WLR 1520 at 1530, to R v Secretary of State for the Home Department, ex p. Doody [1994] 1 AC 531, 560) all contain statements about the need for flexibility. The question is what this means. In the way the term “fairness” was used in Re HK and Benaim and Khaida, it was a signal that, although the reach of the principles of natural justice had been expanded to new situations, the procedures required in those situations might be less onerous and less formal. Within those new areas the content of procedural protection was diluted precisely because the nature of the activity in question did not fall within the classical categories of “judicial” or “quasi-judicial” functions.[68]Some commentators, notably Professor Loughlin and Professor Cane (respectively in 1978 UTLJ 215 and Administrative Law 5th ed., 2011 at 73 - 75) have been critical of the courts’ approach to flexibility of procedural fairness. Despite the signal in Re HK and the other cases that the requirement was for a less formal procedure, in different ways they suggest that the courts have not deployed the flexibility inherent in the notion of fairness of administrative decision-making sufficiently. This is because the various requirements of a fair hearing are in essence (in Cane’s words at 74) “a skeletal version of the elaborate rules of judicial procedure” so that the courts’ menu of choice tends to be a range of possibilities based on adjudicative methods of decision-making. The successful submissions on behalf of L below led to the judge’s detailed model procedure in [588] of the judgment which I have described as having a legislative flavour. The requirements in the twelve legislative-type subsections, which create what is virtually a mini-CPR and what is in substance an adversarial form of adjudication, can be seen as a striking and possibly extreme example of what Loughlin and Cane have criticised.[69]It is, however, in my judgment, insufficient to react to the danger of over-formalisation and “judicialisation” simply by emphasising flexibility and context-sensitivity. There are dangers in concentrating on a flexible notion of overarching fairness. One is that it may lead to an inappropriate drawing together of the concepts of procedural and substantive fairness. Even Wade and Forsyth’s Administrative Law,a text which is committed to the principles of procedural justice and (see 417) to treating natural justice and substantive fairness as different requirements, state (at 419) that what is needed is “some real prejudice to the complainant: there is no such thing as a merely technical infringement of natural justice”. This can, however, lead to the view (see e.g. Glynn v Keele University [1971] 1 WLR 487 and Malloch v Aberdeen Corporation [1971] 1 WLR 1578) that, if the procedural protection that has not been given would have “made no difference”, there is no unfairness. There was an element of this in the suggestion (see [63] above) that there was no credible dispute about the risks posed by L.[70]Such indications as there were in the cases favouring that view have not taken hold. The most vivid statement of the reason why it was correct to reject them is that of Megarry J in John v Rees [1970] Ch 345 at 402 but here I refer only to two recent examples of the modern approach. In Secretary of State for the Home Department v AF (No. 3) [2009] UKHL 28 Lord Phillips (at [60]) stated that he did not believe it was possible to draw a clear distinction between “a fair procedure” and “a procedure that produces a fair result”, and (at [63]) he considered that in many cases it would be impossible for the court to be confident that a fair hearing really would make no difference.[71]In Osborn v Parole Board [2013] UKSC 61 Lord Reed (at [67]ff) stated that “one of the virtues of procedurally fair decision-making is that it is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested”, and (at [68]) that “justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions” and that “respect entails that persons ought to be able to participate in the procedure by which the decision is made, provided they have something to say which is relevant to the decision to be taken”.[72]A second danger of emphasising flexibility and saying no more is that to do so may lead to a modern version of Sir William Wade’s nightmare of a Tennysonian “wilderness of single instances” in which all the contextual factors will be relevant in considering what the requirements of procedural fairness are in a given situation without any factor or group of factors having decisive weight in shaping what is in practice required. The consequence may either risk obscuring the overarching principle or stating it at a level of generality which is not of use as a practical tool to decision-making. The result could be undue uncertainty and unpredictability. There is a need for principled guidance which is practical and does not constitute either a procedural straitjacket, a “safe harbour” for longstanding ways of doing things in a particular context, or operate with centripetal force towards an adversarial adjudicative process.[73]In R v Secretary of State for the Home Department, ex p. Moon (1996) 8 Admin LR 477 at 480, Sedley J (as he then was) observed that “the well-attested flexibility of natural justice does not mean that the court applies differential standards at will, but that the application of the principles (which, subject to known exceptions, are constant) is necessarily as various as the situations in which they are invoked”. Wade and Forsyth (at 421) approvingly observe that this means that “in other words, the courts apply the same principles in many different situations”.[74]The statement by Lord Bridge in Lloyd v McMahon [1987] AC 625 at 702 on which Mr Hyam relied was that “what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make, and the statutory or other framework in which it operates”. It is an important statement. But it should not be treated as an invitation to commence a journey to the wilderness of single instances, or totally to reject the relevance of decisions in other contexts, such as the prisoner risk classification cases. It is recognition that the application of the fundamental principles will reflect the particular situation in which they are invoked.[75]Bearing in mind the legitimate needs of context and circumstances, significant guidance is provided by the formulation of six overarching principles by Lord Mustill in Doody’s case. That case involved the former system under which the Secretary of State set the minimum period before which those sentenced to life imprisonment could not be considered for release on licence. The House of Lords held that the Secretary of State was required to afford to a prisoner serving a mandatory life sentence the opportunity to submit, in writing, representations as to the minimum period that he or she should serve for the purposes of retribution and deterrence. The first two principles identified by Lord Mustill ([1994] 1 AC 531 at 560) are that “the standards of fairness are not immutable” and “may change with the passage of time, both in the general and their application to decisions of a particular type”. The other four principles are:
“… (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken, with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will very often require that he is informed of the gist of the case which he has to answer.”
(emphasis added).[76]There is a general recognition that considerations of urgency or confidentiality will limit what fairness requires in a particular case. In other contexts, the fact that a decision is a preliminary decision, or a non-dispositive one by an investigating body, have limited what is required. Those factors have been recognised as reasons for not requiring chapter and verse of what is alleged against a person to be put to him. They may also limit the material that must be made available to the individual or the scope of his or her participation in the decision-making, including whether there need be an oral hearing, whether legal representation should be permitted, and whether cross-examination is to be allowed.[77]Where a statutory procedure suffices to achieve fairness, or where requiring additional steps would frustrate the apparent purpose of the legislation, the courts will not require additional procedures and, in this sense, the statutory and regulatory context may limit what fairness requires in a particular case. I do not consider that this is a reason which is applicable in this context. I have described the alternative avenues by which any dissatisfaction on the part of L with a decision to transfer him could be ventilated. There is (see [29], [32] and [35] above) no possibility of an appeal to the Tribunal before the transfer, and thereafter only after a report under section 20 which does not discharge the patient. The issue in such an appeal is not whether it was correct to transfer the patient, but whether he or she should be re-transferred or discharged. Moreover, Stockton Hall’s policy (see [41] above) means that the opportunity of raising the question of a transfer at a Hospital Managers’ Hearing before the transfer was not in reality a practical possibility. Finally, the statutory Code at paragraph 30.15, which states that transfers are potentially an interference with the patient’s rights under ECHR Article 8, provides an indication that additional procedural steps to those explicitly in the legislation and the Code would not frustrate the purpose of the legislation and the Code. This is because it is clear that, while Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8: see McMichael v United Kingdom (1995) 20 EHRR 205 at [87]; Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300 at 1308 – 1309; and Re L (Care Assessment: Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR 730 at [87ff], and DL and ML v Newham LBC and Secretary of State for Education [2011] EWHC 1127 (Admin) at [140].[78]There are, however, several other factors in the present case which justify circumspection. They do this in a similar way to the way that the factors to which I refer at [76] have limited the requirements of what material must be made available or the scope of the individual’s participation. The first factor is that, as recognised by this court in R v Secretary of State for the Home Department, Special Hospitals Service Authority and Department of Health and Social Security, ex p. Pickering [1990] COD 455, the decision in this case is a clinically-based medical evaluation of future risk to the patient and to others. See also the references to the need for respect for clinical judgment in different mental health contexts in R (Williamson) v Broadmoor Special Hospital Authority [2001] EWCA Civ 1545 at [79] per Hale LJ in relation to imposed treatment (proper respect for “therapeutic necessity”) and in R v Camden and Islington Health Authority, ex p. K [2002] QB 98 at [58] per Sedley LJ. The second is that the evidence in these proceedings shows there is often a need for transfers to be executed with urgency because of the inability of the medium security hospital to continue to look after the patient safely, and the immediate risk to that patient and other patients, and to staff. The third factor is that the decision has a “rationing” aspect because of the scarcity of high security places in hospitals. The admission criteria are inter alia directed to ensuring consistency in the admissions standards used by the three high security hospitals.[79]The result in particular of the first and third factors is the width and range of the matters that are considered and legitimately considered by the Admissions Panel when considering whether to admit a patient who has been referred. These factors are similar to those which led Maurice Kay LJ in R (King) v Secretary of State for Justice [2012] 1 WLR 3602 to state (at [44]) that the decisions that have to be made are not made “just in a binary mode as between themselves and an individual prisoner” but “acting in the interests of the security of the institution as a whole”. The situation therefore has an element of polycentricity about it. Particular care should be taken in deploying an adjudicative form of process, let alone an adversarial form of adjudication in such cases: see Craig, Administrative Law 7th ed., 2012, 12-038 – 12-040, and Allison, “The Procedural Reasons for Judicial Restraint” [1994] PL 452, both discussing and drawing on Fuller’s seminal “The Forms and Limits of Adjudication” (1978) 92 Harv. LR 353.[80]The clinical decision is one that is made on the basis of the entire clinical and other history of the patient in question. The incident which is the trigger to the reference is typically only part of a much larger picture that has to be considered, and subtle nuances in the description of the facts of that incident are unlikely to affect the overall decision. The crucial question of substance was L’s mental health and whether the risk he posed to himself and to others meant it was necessary for him to be transferred and held in conditions of high security. This was a clinical question in which L’s own interests and health, and the safety of other patients and staff had to be taken into account, as well as L’s views. Unlike the case of Mr Bourgass, one of the applicants in King’s case, the decisions in this case did not turn on a “stark factual issue”.That said, it is possible that through carelessness, incompetence or even possibly maliciousness, an unpopular or particularly difficult patient may be the subject of a false accusation which is treated as a triggering event, but where it would be possible for him or her to show its falsity.[81]It is against this background that the statements in the prison categorisation and transfer cases, in particular Duggan [1994] 3 All ER 277, Doody [1994] 1 AC 531, McAvoy [1998] 1 WLR 790, and King [2012] 1 WLR 3602, and the guidance in R v Secretary of State for the Home Department and Department of Health, ex p. Pickering 25 May 1990 and R v Secretary of State for the Home Department, ex p. Harry [1998] 1 WLR 1737, the two decisions involving secure hospitals,need to be considered. I have dealt with Doody’s case at [75] and referred to King’s case at [79] - [81]. Duggan’s case establishes that a prisoner should be able to see the reports about him or her which will be before the person making the decision as to category. The sixth of the principles set out by Lord Mustill in Doody’s case shows the reason that the person about whom a decision is to be made needs to see a report or its “gist” is because that person will usually not be able to make worthwhile representations without knowing what factors may weigh. The decision of Munby J (as he then was) in R (Lord) v Secretary of State for the Home Department [2003] EWHC 2073 (Admin) is a useful example of the practical operation of this principle. In that case, an inaccurate “gist” was held (see [55] – [57]) to deprive the individual of the ability to make such representations.[82]Before turning to the two decisions involving secure hospitals, I observe that there are undoubtedly differences between transfers of those imprisoned and those detained in secure hospitals. One is that, for the majority of prisoners, the sentence is for a determinate period. Another is that the consideration of categorisation and transfer of prisoners are, in many cases, primarily concerned with the risk of escape and not clinical assessments. But, in the case of those serving life sentences or sentences of imprisonment for public protection, the sentence is not for a determinate period. After the expiry of the minimum period, the issue is whether the prisoner can safely be released on licence. Moreover, although some categorisation and transfer decisions in the prison context do not involve clinicians, in many a medical and psychological assessment of the risks posed by the prisoner is important. Nevertheless, in the prison context fairness has been held to require that an opportunity for representations must be given, and at least the “gist” of the relevant reports must generally be made available. These considerations as well as what I have said about the relevance of the overarching principles of the concept of procedural fairness, have led me, while recognising the importance of context and of looking at the overall protection available under a particular statutory and regulatory scheme, to reject the submission that there is no, or at its highest very little, assistance to be gained from the prisons cases.[83]Ex p. Pickering was a renewed application for permission to apply for judicial review heard by this court following the refusal of permission by the judge in the Administrative Court. It concerned a challenge to a decision to transfer the claimant from Broadmoor to Ashworth. The summary of the decision in Crown Office Digest that was before the court shows that, in 1990, this court was very reluctant to intervene or to impose procedural requirements. It considered that, because the choice of regime and the most appropriate place in which to detain a restricted patient were pre-eminently matters for the advice of doctors, i.e. clinical matters, where decisions were made in good faith and based on the advice of the doctors, the court would interfere only in exceptional circumstances. It also considered that it was unarguable that the exercise by the authorities of the power to transfer the claimant involved any need for providing an opportunity to make representations before the decision. It is noteworthy that, so far as one can tell from the summary, decisions on the transfer of prisoners, in particular ex parte McAvoy [1994] 3 All ER 417, were not seen as even arguably relevant. It should, however, be noted that the case did not involve a transfer to conditions of greater security, and there have undoubtedly been developments in the overarching principles of procedural fairness since 1990, including what was stated by Lord Mustill in Doody’s case.[84]Those developments are reflected in the second of the decisions involving secure hospitals, ex p. Harry in 1998 which the judge (at [427] – [435]) considered and (at [458] – [469] and [526] – [527]) relied on. The claimant, Mr Harry, was a patient detained in a maximum security hospital subject to a restriction order under section 41 of the 1983 Act. He was thus subject to the extra layer of decision-making to which I have referred (see [28] above); the need for the Secretary of State to consent to his transfer or discharge. A Mental Health Review Tribunal made a recommendation that he should be transferred from Broadmoor to conditions of less security and, on the basis of that, his responsible medical officer (“RMO”) applied to the Secretary of State for a period of trial leave. The Secretary of State referred the matter to his Advisory Board on Restricted Patients. After a non-medical member of the Advisory Board interviewed Mr Harry and hospital staff and reported to the Board, the Board concluded that he was “as dangerous and manipulative as ever” and did not support the proposal for a period of trial leave and advised the Secretary of State in those terms. The Secretary of State followed the Board’s advice. His letter to the RMO stated that, after considering the Board’s views, he concluded that Mr Harry remained dangerous and had co-operated with staff only in order to achieve a move from Broadmoor. The letter also referred in general terms to the motivation behind the index offences, the possible future risk to his wife if discharged, and stated that Mr Harry had a tendency to intimidate others, and a lack of remorse. The Board’s advice or its “gist” was not disclosed to Mr Harry who was not given an opportunity to make representations before or after the Secretary of State made his decision.[85]Lightman J stated that transfer to conditions of lesser security was a vital stage in a patient’s treatment and rehabilitation and affected his future prospects of discharge. It was clear that he was assisted by the prison decisions, in particular Duggan’s case. He held that the procedures followed at that time by the Secretary of State in making the reference to the Board and acting on its advice did not comply with the requirements of procedural fairness, because the patient was not shown the advice and no opportunity was given to make representations. He did not, however, grant substantive relief only because, in the course of the hearing, the Secretary of State announced a fundamental change of practice by which patients would normally be told the “gist” of any information before the Advisory Board on a relevant point, be given an opportunity to make written representations to the Board, and be given a copy of the advice from the Board to the Secretary of State. Lightman J endorsed the adoption of this practice, but stated that, while the restricted person’s entitlement was limited to the “gist” of the report, it was important that the “gist” should be communicated in writing.[86]Mr Hyam submitted that the essential conclusion in ex p. Harry that the “gist” of the report had to be disclosed to Mr Harry was tied to the particular facts and context of that case, and that, for a number of reasons, the judge erred in following it. First, the non-statutory recommendation by the Tribunal meant that Mr Harry had a legitimate expectation of transfer. That legitimate expectation was the reason that fairness required that the “gist” of the report be disclosed. There is no such expectation here. Secondly, in that case there was a difference between the recommendation of the Tribunal and the report of the Advisory Board. In this case, there was no material that was contrary to the reports of the referring hospital and the assessing doctor. Thirdly, Mr Hyam submitted that in this case, unlike Harry’s case, L had the opportunity to challenge the basis of the reference to Broadmoor before a Hospital Managers’ Hearing to consider the transfer, but did not do so.[87]This is indeed not a legitimate expectation case in the classic sense of that term, but that is not a compelling reason for concluding that there is no requirement to furnish at least the “gist” of the referral and the report. While those with such expectations, based on representations or conduct, may have stronger claims to procedural and substantive protection and possibly to more extensive procedural protection, the impact in fact of a decision on a person may give even a “mere applicant” the entitlement for an opportunity to make representations: see ex p. Benaim and Khaida [1970] 2 QB 417. L’s position as a detained patient who was being considered for transfer to conditions which had the potential to delay his ultimate date of discharge and had the potential to be more restrictive was stronger than that of a “mere applicant”.[88]The other distinctions on which Mr Hyam relied do not, in my judgment, assist him. The “better decisions” and “due respect” rationales for requiring an opportunity to make representations referred to in many decisions, most recently by Lord Reed in Osborn’s case (see [71] above) do not justify the conclusion that fairness only requires the decision-maker to disclose to the patient the “gist” of reports as part of the opportunity to make representations where there are different opinions in the reports. Moreover, as I have observed, the policy at Stockton Hall (see [41] above) meant that the opportunity of raising the matter at a Hospital Managers’ Hearing before the transfer was not a realistic possibility.[89]The facts of the present case may differ in one significant way from those in ex p Harry. It appears from the judgment in that case that, beyond the general statements in the Secretary of State’s letter to the RMO and his later letters to Mr Harry and his solicitors, Mr Harry knew nothing whatsoever about the factual basis upon which the Board and the Secretary of State reached their conclusions beyond what was said in the post-decision letters to the RMO and to Mr Harry. That was not the position in this case because (see [12], [14] and [16] above and [90] – [92] and [95] below) before the decision was made L and Ms Jolly knew that the incident on 31 July and its aftermath had triggered the consideration of his transfer.[90]In the present case, the crucial question is whether despite that difference, as in ex p. Harry, fairness required that L and his representatives be given the “gist” of the reports before the decision was made, or whether the information he was given at his meetings with Dr Vandenabeele and Dr Sengupta, and the opportunity at those meetings to comment on whether he should be transferred sufficed to satisfy the requirements of fairness. L knew very soon after the incident on 31 July that, as a result of it and its aftermath, Stockton Hall was considering whether to refer him to Broadmoor. It is not clear from the material before the court precisely what was said to him by Dr Vandenabeele about the incident, but L had an opportunity to give his side of the incident and his view of the circumstances to Dr Vandenabeele before the reference. L and Dr Sengupta met on 17 August, over two weeks later after the reference. At that meeting he also appears to have had the opportunity of giving his account of the incident and his motivation, this time to Dr Sengupta.[91]Of course, in the case of a seriously ill mental patient, such representations as the patient makes may be based on a distorted perception and, for example, without an appreciation of the consequences of a transfer to high security conditions. For these reasons, the patient’s own account may not be reliable. Here, until L consulted his solicitor, Ms Jolly, on 19 August, he appeared to be content, and possibly even keen, on being transferred to Broadmoor. It was submitted by Mr Squires that, because of this unreliability it was necessary for somebody to be able to make representations on his behalf. It was also suggested that it may not have been consistent with the doctors’ clinical responsibilities for them to put these matters to L when they saw him in a way which gave him the opportunity of making meaningful representations to the Panel. For that purpose it was necessary for him and someone acting on his behalf to see their reports or “gists” of them. But L was able, and did, communicate with Ms Jolly about these matters on 19 August. She had been advising him for some time and was aware of his mental condition. L (and his legal advisers) would have had the medical reports considered by the Tribunal in July 2009.[92]If L was not able to make representations on his own, since he knew that the incident had led to consideration of a transfer, and had been in touch with Ms Jolly about it, she also knew in general terms what had prompted consideration of a transfer. Although, at that time, Ms Jolly and L were not able to see precisely how Stockton Hall had characterised the incident and its significance, and how Dr Sengupta would do so, they could have made representations putting L’s point of view about the incident and the transfer to those considering it. L’s version of events, that he made the weapons but volunteered information about them to the hospital as some form of cry for help in his desire that either he or SW be transferred to another ward, could have been put to the authorities at Stockton Hall, to Dr Sengupta and the authorities at Broadmoor, and to the Panel without Dr Vandenabeele’s letter of reference or its “gist”, or Dr Sengupta’s assessment or its “gist”. They were, adapting Lord Reed’s words in Osborn’s case (see [72] above) able to participate in the procedure by which the decision was made, albeit not by making representations in the light of the reference and the report or their “gists”.[93]Instead of doing what she could at that stage, Ms Jolly made no representations before the Panel decision. She does not appear to have contacted Dr Vandenabeele, and, although she did speak to Dr Murray on the telephone as early as 20 August, almost two weeks before the hearing, that conversation seems to have been about her request to attend the Panel meeting. She was told she could not attend, but waited before making representations until she received the documents after that decision. It was only then, although before L was transferred, that she expressed her concern about the accuracy of the factual basis upon which the decision was made.[94]It is true that the documents show that the weapons incident was an important factor in Dr Sengupta’s assessment. But, since the focus of the concerns expressed by Ms Jolly and the submissions made by Mr Squires are the factual circumstances of and the motivation for the triggering incident, it is important to note the narrowness of the potential factual dispute identified by Ms Jolly when she did make her representations. It only concerned the accuracy of characterising the triggering incident as one in which staff “discovered” the weapons and the fact that there was no reference to L’s attempts before the incident to be separated from SW. It was not in issue that L had fashioned the weapons, apparently according to the evidence achieving a sharp edge by rubbing the glasses case against a wall. It was not in issue that he stated that he would stab SW. The question whether this was a “cry for help” rather than any manifestation of intent to harm and a risk to other patients was primarily a clinical one for the psychiatrists involved to determine. Although the way the triggering incident was characterised was no doubt relevant, even if L’s conduct was a cry for help, the fundamental question was whether he could be managed in conditions of medium security without risk to himself or others. This also was principally a question for the clinicians and, to reiterate, what was important for their determination was that L went to some effort to fashion the weapons, hid one of them, and made the statements he did. None of that was at issue.[95]Overall, looking at everything that happened in this case, I consider that on its particular facts L was able, either personally or through his solicitor, to put his side of the story about the weapons incident to the authorities before a decision was made. He was able to do so at either his meeting with Dr Vandenabeele, that with Dr Sengupta, or, after the latter meeting, through Ms Jolly. That, however, is not the end of the matter. The ability of L or his solicitor to put his side of the story about the weapons incident to the authorities in the particular circumstances of this case has an element of fortuity in it. The fortuity stems from the way the transfer procedure is structured and managed. I referred (at [41]) to Stockton Hall’s view that to permit formal representations would compromise the therapeutic environment, and that patients have no right to be consulted before a decision to transfer is made. Additionally, Broadmoor’s admissions policy allows for no input from patients to the deliberations of the Panel: see Dr Murray’s first statement, paragraph 5.[96]I consider that the transfer process could and should be improved to remove the fortuity and ensure fairness, and that this can be done without opening the process to the charge of over-judicialisation or over-formality. How this is to be done in a practical way is, in the first instance, a matter for the clinicians and those with responsibility for administering the hospitals assisted by their legal advisers but I indicate below the main features of what I believe is required. I have taken into account the guidance in the Code and the fact that the total number of possible transfers into high security conditions each year (see [25] above) is not huge. In fact, the number of possible transfers from medium security hospitals is very small. I have, however, also taken into account that there is often a need for such transfers to be executed urgently.[97]The Code and the Operational Procedure make provision for the involvement of the patient from a clinical view and, as I stated (see [77] above), paragraph 30.15 of the Code states that transfers are potentially an interference with the patient’s rights under ECHR Article 8. But there is no express recognition in those documents that there may be issues which need to be put to the patient before a decision is made, or that he or she should be given an opportunity to make representations. The very general reference to transfer potentially interfering with a patient’s rights under Article 8 does not refer to the procedural implications of that. The care and family cases to which I have referred at [77] recognise that, where the decision-making process leads to measures of interference with the interests protected by Article 8, the process must be such as to secure that the views and interests of those affected are made known to and duly taken into account by the decision-maker. In that context it has also been said (see Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300 at 1310C – D and 1311A) that what is needed is active involvement in the decision-making process as a whole to a degree sufficient to provide those affected with the requisite protection of their interests.[98]The consequence of the way the Code and the Operational Procedure are drafted is, as it appears to have been in this case, that factual issues about a triggering incident are only put as part of the overall clinical assessment and emphasising only the features significant to that. In his witness statement, Dr Vandenabeele only states that he “mentioned” to L that it was his intention to refer him to a high security hospital. He does not state that he put what others had told him about the facts of the triggering incident to L. It is perhaps not surprising, in view of the position taken by L at that time and at his interview with Dr Sengupta (see [15] above) that the precise factual circumstances of that incident were not explored. L was highlighting his own risk of interpersonal violence and describing incidents of violence on the ward and in the community. This was not a scenario in which the nuanced differences of the presentation of the factual circumstances of the triggering incident relied on later by Ms Jolly and, in his submissions, by Mr Squires were likely to be explored. The upshot is that the conversations between the patient and the doctors at the meetings/interviews are not primarily designed and structured to give the patient the opportunity to present his or her perspective and provide comments about the proposed transfer. They also involve only an oral exchange and opportunity for oral representations at the meetings/interviews, which (see Lightman J’s comments in ex p. Harry at 1747A – 1748A), particularly in the case of a mental patient, carry the disadvantages referred to by Mr Squires.[99]I have concluded that, absent urgency, a clinical reason precluding such notification, or some other reason such as the exposure of other patients or staff to the risk of harm, the “gists” of the letter of reference to the high security hospital by the hospital that wishes to transfer the patient and the assessment by the clinician from the high security hospital should be provided to the patient and/or his or her representative. This should be done as part of the patient’s involvement in the process as required by paragraph 30.17 of the Code (set out at [40] above). That provision is an aspect of the requirement at paragraph 30.15 of the Code that the needs and interests of the patient be considered. In cases where this is not precluded by considerations of urgency, a clinical reason, or because of the risks I have mentioned, and the “gists” should be sent, this can be done by enclosing them with a largely pro forma communication informing the patient and/or his representatives that, if they disagree with the factual or clinical triggers for the reference or assessment, they can make submissions in writing which will be considered by the Panel. This does not, of course, preclude the hospital providing copies of the letter of reference and the assessment rather than the “gist” of those documents, but that is not, in my judgment a requirement of fairness in this context.[100]I have considered whether the implication of paragraph 30.17 of the Code, that the patient should be “involved in the process leading to any decision to transfer them”, means that the patient should be given an opportunity to make representations to the putative transferring hospital before the reference is made. This is not an entirely straightforward matter. The fact that the formal transfer is made by the transferring hospital may be a pointer to giving such an opportunity. On balance, however, I consider that, in view of the fact that the effective decision is made by the putative receiving hospital, this is not necessary. Again, while this not, in my judgment a requirement of fairness in this context, it does not preclude the hospital that is considering whether to refer a patient for transfer from doing so in a particular case. As to the form of the representations to the Panel, because of the clinical and rationing nature of the Panel’s determination, and because Dr Murray’s evidence is that in practice (see [51] above) neither the referring clinician nor the assessing clinicians participate in its deliberations, I do not consider that there should be an opportunity for any participation on behalf of the patient beyond the opportunity to make written submissions to the Panel in the light of the reports or their gists. The possible exception is in a case where, notwithstanding Dr Murray’s evidence, the assessing doctor is invited, pursuant to paragraph 6.5 of Broadmoor’s Operational Policy, to attend the deliberations of the Panel.[101]For the reasons I have given, I consider that paragraphs 1 and 2 of the judge’s Order should be set aside. Notwithstanding that “gists” of the relevant documents were not provided in this case, because in the event L was able, either personally or through Ms Jolly to put his side of the story about the incidents to the authorities before a decision as to his transfer was made, and in the light of all that has happened since, I do not consider an alternative declaration is needed. This is in particular because of the failure of L or Ms Jolly to make such representations as they could have made without the “gists” on the information they had about the triggering event, in part from the meetings, and the discharge of the injunction restraining L’s transfer after he withdrew his application for interim relief. His withdrawal before the hearing below of his challenge in these proceedings to the decision to detain him in conditions of high security and of his application to the Tribunal to recommend that he be transferred back to a medium security hospital are also relevant because they give the appearance of a form of acceptance that he was properly detained in conditions of high security.[102]Those with responsibility for the operational policies and admissions guidelines to high security hospitals, and those in medium security hospitals who have responsibility for deciding whether to make a reference, should, consider how their operational arrangements can be recalibrated in line with the matters set out in [95] – [99] to give better practical effect to the provisions of paragraphs 30.15 and 30.17 of the Code and not to leave themselves open to the charge of unfairness or the suggestion that the patient is, in substance, the object of a process involving the two hospitals rather than its subject. Some of the evidence and the submissions in this case could be seen as creating such an impression. I am, however, satisfied after a close examination of the facts that this was not how those with clinical responsibility for L regarded him. Lord Justice Patten[103]I agree. Lord Justice Moses[104]The comprehensive and careful judgment of Beatson LJ stems from an unpromising beginning for two reasons: first, the evidence failed, as it seems to me, to establish that L had suffered any procedural unfairness and second, the excessive length of the judgement below terminating in a quasi-legislative list of requirements was likely to induce in those doctors who are charged with the difficult task of deciding whether a patient’s condition requires his move from a medium to high-security hospital with a sense not only of despair but of a belief that judges do not understand the practical consequences and difficulties inherent in the exercise of clinical judgments respecting patients suffering from mental illness.[105]And yet Beatson LJ, to my mind, by dint not only of learning but also of a sensitive understanding of both doctor and patient, has reconciled the problems of over-prescriptive judicial intervention with the need to be mindful that a decision to transfer a patient from medium to high- security hospital will have a significant adverse effect on a patient’s future: see [55]-[57].[106]I was, initially, reluctant that this court should add to the extensive jurisprudence as to the protean concept of fairness in light of the facts of this case. L knew that what had happened on 31 July had triggered consideration of the transfer, had appeared to wish to engineer that result and had had ample opportunity to discuss the incident with the two doctors, Dr Vandenbeele and Dr Sengupta. I do not share Beatson LJ’s lingering concerns ([98]) derived from the way the transfer procedure is structured and Dr Vandenbeele’s letter and evidence. I am not prepared to assume against the doctors that there was insufficent discussion as to the full facts and as to the reasons for the transfer. Once his legal adviser had had a proper opportunity to make representations she had nothing of real importance to advance as to the facts. The area of dispute was, in my view, minimal. Nor did she have much to say as to the desirability of the transfer: see [93]-[97].[107]Beatson LJ has fully explained the dangers and defects of the present Code which, in particular at paragraph 30.17, does no more than to indicate in general terms that a patient is to be “involved” in the process leading to a decision to transfer. The Code does not meet the demands of fairness in relation to a significant aspect of a patient’s future. Contrary to the submissions of the Trust, even if the transfer did not have the adverse consequence of making a release into the community less likely, a transfer has a substantial effect on a patient’s day to day life. That is not just a matter of recognising additional restrictions but also an acknowledgement that a patient, faced with transfer, will usually be well aware that his health is such that doctors believe it is necessary to detain him in conditions of the greatest security available.[108]The Code was defective in its failure to make sufficient provision for providing a patient with sufficient information to make representations and an opportunity to make those representations to the Panel of the receiving hospital, unless the circumstances are so urgent or the clinical risks to the patient or to others are so great as to preclude such an opportunity: see [99]-[100] . Beatson LJ has shown that the numbers of transfers are not such as to make a fair procedure impractical. His judgment should be a source of comfort to a patient faced with transfer whilst producing no cause for concern to doctor or to administrator. Save for my assessment of the conversations between the doctors and L, I agree with it and with its reasoning. 110. Appendix: Paragraph [558] of Stadlen J’s judgment “In my judgment where the managers of a medium security hospital contemplate the referral of a patient detained under the 1983 Act to a high security hospital procedural fairness requires (subject to the need to protect persons from the risk of harm or some other substantial reason for departing from these requirements, which must be communicated to the patient's advisers unless there is a substantial reason for not doing so, in which event that reason must be communicated to them) that:
“1. The patient and the patient's advisers must be informed of any intention to refer him or her to a high security hospital with a view to admission and transfer. “1. The patient and the patient's advisers must be informed of any intention to refer him or her to a high security hospital with a view to admission and transfer. 2. The patient and the patient's advisers must be told the gist of the reasons for the referral, the gist of any referral reports sent by the medium security hospital to the high security hospital and the gist of any reports prepared by the assessing psychiatric consultant or other persons instructed to prepare reports for the admissions panel or for other persons authorised by the high security hospital to consider the referral. 3. The gist of the reasons and/or reports referred to in (2) above must be sufficiently detailed, having regard to the importance of the issue at stake and of the contents of the documents in question on that issue, to enable the making of meaningful and focussed representations. Consideration must be given in each case to whether a full and fair understanding of the gist of any report can be conveyed without production of the report itself and whether good administrative practice may also call for its production. Good administrative practice may call for the production of the document where that is necessary to avoid the risk of a legitimate sense of concern or grievance and there is no countervailing consideration of any weight and no legitimate reason for wishing to withhold it. In the latter event the reasons for withholding the document should communicated to the patient and the patient's advisers. 4. If requested to do so by the patient and/or the patient's advisers consideration should be given to whether in the circumstances of the particular case additional information should be made available. Good administrative practice may call for additional information to be made available where that is necessary to avoid the risk of a legitimate sense of concern or grievance and there is no countervailing consideration of any weight and no legitimate reason for wishing to withhold it. In the latter event the reasons for withholding any information should be communicated to the patient and the patient's advisers. 5. Unless at any of the following stages it would be contrary to the need to protect persons from the risk of harm to do so, the information referred to in (2) above and such information as is required to be made available pursuant to (4) above must be communicated to the patient and his or her advisers (i) before the admissions panel (or other relevant body or committee) meets to consider the referral and in time to enable the patient and/or his or her advisers to make representations before it meets; or failing that (ii) before the high security hospital decides to accept the referral and admit the patient and in time to enable the patient and/or his or her advisers to make representations before that decision is made; or failing that (iii) before the decision to transfer the patient from the medium security hospital is made and in time to enable the patient and/or his advisers to make representations before it is made; or failing that (iv) before the decision to transfer the patient to the high security hospital is implemented and in time to enable the patient and/or his or her advisers to make written representations to before it is implemented. 6. If the information referred to in (2) and such information as is required to be made available pursuant to (4) above has not already been communicated to the patient and his or her advisers it must be communicated immediately upon the transfer taking place. 7. The reasons for a decision of a medium security hospital to transfer a patient to a high security hospital, a decision of an admissions panel of a high security hospital, or other persons authorised by the high security hospital to consider the referral, to support the patient's admission, and a decision of the high security hospital to admit the patient must be communicated to the patient and the patient's advisers. Unless it would be contrary to the need to protect persons from the risk of harm to do so, the reasons for any such decision should be communicated to the patient and the patient's advisers as soon as the decision has been made; or failing that as soon as it would not be contrary to the need to protect persons from the risk of harm to do so and in any event at latest immediately upon the transfer taking place. The reasons must be sufficiently detailed to enable a patient or his or her advisers to decide whether a worthwhile challenge to the decision can be made. 8. Unless at any of the following stages it would be contrary to the need to protect persons from the risk of harm, the patient and the patient's advisers must be given the opportunity to make written representations in response to such material as he or she is entitled to be made aware of under (2) to (4) above and as to why he or she should not be transferred to a high security hospital (i) before the admissions panel (or other relevant body or committee) meets to consider the referral; or failing that (ii) before the high security hospital decides to accept the referral and admit the patient; or failing that (iii) before the decision is made to transfer the patient to a high security hospital; or failing that (iv) before that decision is implemented. 9. If because it was contrary to the need to protect persons from the risk of harm the patient was not provided with an opportunity to make such written representations before a decision to transfer him or her to a high security hospital was implemented, the patient and the patient's advisers must immediately after the transfer has taken place be given an opportunity to make written representations as to why they should not have been so transferred and why the decision to transfer them and/or admit them to the high security hospital should be rescinded. 10. The patient and his or her advisers must be told that an oral hearing may be possible although it is not automatic. If the patient or the patient's advisers request an oral hearing consideration must be given as to whether such a hearing is necessary in the interest of fairness having regard to the seriousness of the consequences for the patient of a transfer and to the circumstances of the case. In particular where the patient seeks to challenge the truth or accuracy of allegations or findings which led to the referral or are referred to in the report of the assessing consultant or seeks to provide an explanation for them which was not taken into account or was disputed by the referring hospital and/or assessing consultant, consideration must be given to the question whether it is necessary to resolve those issues before a final decision is made as to whether or not the patient satisfies the admissions criteria of the high security hospital and presents a risk to others which cannot safely be managed in the medium security hospital. If it is, an oral hearing should be the norm rather than the exception. If it is considered in the light of the matters referred to above that an oral hearing is not necessary reasons for that view must be communicated to the patient and the patient's advisers. 11. Where it is considered that there should be an oral hearing then, unless at any of the following stages it would be contrary to the need to protect persons from the risk of harm or there is some other good reason, it must be held (i) before the admissions panel (or other relevant body or committee) meets to consider the referral; or failing that (ii) before the high security hospital decides that the patient should be admitted and the referral should be accepted; or failing that (iii) before the decision to transfer the patient is taken; or failing that (iv) before the decision to transfer the patient is implemented. In any other case it should take place as soon as reasonably practicable after the transfer has taken place. 12. Before implementing a decision to transfer a patient to a high security hospital the referring medium security hospital should satisfy itself that such of the procedural requirements referred to above as are required to be complied with before a transfer takes place have been complied with.”

Cited in 7 later judgments